Thursday, April 29, 2010

The Forgotten Case Of S.C. 18178

We ask a lot of clients when we ask them to trust that justice will be done in the courts. While we seek to improve public confidence in the courts, there is still plenty of reason to be suspect. Consider a case of mine. His case is docked under number S.C. 18178.

I write about it now with the client’s consent, but I do not use his name. I write about it because I cannot get the courts to act, and my client has grown weary of waiting for justice. I write out of a sense of despair.

The man pleaded under the Alford doctrine on the eve of trial to offenses arising from the complaint of a young child for whom he had baby sat. Such a plea reflects a compromise: the client does not acknowledge doing what he is charged with; he merely agreed to accept a plea because the terms are better than what he would get if a jury believed the state’s case.

My client received no jail sentence. He was told by his trial lawyer and the trial judge at sentencing that he would not have to register as a sex offender. The state said nothing as the lawyer and judge assured the client he would not have to register.

Here is what was said at the time the plea was entered. “[I]t is our understanding and belief, I think as well as the State’s attorney, that none of these charges carry any sexual offender registration,” his lawyer said. “That is my understanding,” the judge echoed. By used-car lot standards the client had struck a deal and knew what he was buying. An implied condition of this unholy contract was no registration.

But we all know that the exalted and rarefied standards of a used car lot far exceed what measure of justice we offer those accused of crimes. In the criminal court, the implied condition can be condensed to the following rule: Screw the defendant to the wall anyway you can. Errors at trial are harmless. Lawyers provide effective assistance of counsel even when asleep. Trials need only be fair, not perfect. The presumption of innocence is a three-dollar whore, and many courts continue to argue her cost is too high.

After sentencing, the client sought to go about the difficult task of rebuilding his life.

Imagine his surprise when well after the plea he was informed that he would have to register as a sex offender.

I got involved in his case after a handful of other lawyers had tried and failed to extricate the client from this lawless nightmare. Just barely I was able to keep him out of jail. He registered as an offender, and now lives with the unbearable strain of a crackpot neighbor’s monitoring his every move. She thinks she’s protecting the world. When my client asks for protection from her, the police ignore him.

The life of a sex offender is nasty and brutish, you see.

So I appealed the requirement that he be placed on the registry. I filed my brief in the Appellate Court of the State of Connecticut. For reasons unknown to me, the state Supreme Court moved the case to its docket. And I argued on behalf of my client. The argument took place in mid-October 2008, eighteen months ago.

I did not think the argument before the justices went well. “Why didn’t your client petition for habeas corpus relief?” one justice asked. “The remedy he seeks is the benefit of the bargain he struck. He does not want a new trial,” I answered.

From time to time my client asks me when the court will act. I tell him I do not know. There is nothing I can do. We have petitioned Oz. We must now wait.
But how long must this man wait for a decision? Forever?

I called the Supreme Court clerk’s officer the other day to make sure I hadn’t missed publication of the decision. The case is still undecided, I was told. I passed word along to my client. His response is privileged.

How long, Madam Chief Justice, must we wait for a decision in this simple case? Will it be another month, or another year? Justice delayed is justice denied, I’ve heard it said. Clarence Darrow once observed, there is no justice in or our of court. Had Darrow lived and practiced in our fair state, he might also have added: “There are no final decisions, either.”

Reprinted courtesy of the Connecticut Law Tribune.

Monday, April 26, 2010

In Re Roman Polanski

I was puzzled yesterday when I saw syndicated columnist George F. Will chortle on television about national sovereignty. He thinks that's what the people want. They want their government to feel secure in its power. Call Will a crypto-royalist.

Will was talking about Arizona's new immigration law, of which I will say more in another essay. For now, I'd like to test the Will thesis: Do we the people really give a hoot about sovereignty? The answer is, of course, yes, but we fear it when it is directed at us; we love it when it is directed at what we fear. Hence, leave my loved ones alone, but keep me free from meddling darkies sneaking across the border. Will, of course, is a churlish white guy; he has difficulty fathoming a world of lovable Mexicans.

This schizophrenic attitude is on display in the Roman Polanksi case.

Polanksi, you will recall, was convicted of raping a 13-year-old after liquoring her up. The party took place at Jack Nicholson's house. He pleaded guilty, and then fled the country before sentencing in 1978. He's not been back in the United States, so far as we know, since. We fear child rapists.

The film director has not been living in hiding these past thirty years. But California prosecutors only recently decided they needed to do something about Polanski's flight from justice. They seek extradition of Polanski to the United States.

But a funny thing happened along this twisting and turning road. The victim in this case, Sandi Gibbons, lost interest. Oh, it helps that she was paid a handsome settlement of her civil suit. The sum, though not confirmed as actually paid, is rumored to be $500,000. But more fundamentally, Ms. Gibbons just wants the whole sorry saga to be ended.

So Ms. Gibbons did what a crime victim has a right to do. She filed a petition in court. She told the California appeals court she wants the case against Polanski dismissed. She is the victim after all, right? And victims have a right to be heard, right? Don't we fear governments that forget the very people they serve?

But here is how it really works in most courtrooms in the United States: victims have a right to be heard, but the government has the right to decide. The admixture is a perverse abdication of responsibility by prosecutors.

I saw it first-hand again the other day. The prosecutor in a case I am handing was "open to the possibility of a walk" for my client. In other words, if the man entered a guilty plea, the state would consider no prison time. But first, the victim had to be consulted. When the victim wanted jail time, the state said it's hands were tied? Prison was now a requirement. Who is calling the shots in this case?

A prosecution pits the state against an individual accused of breaking the law. In most crimes, there is a victim. The victim, we say, has a right to be heard on the disposition of any case. But being heard is not the same as dictating terms. Many prosecutors simply do a victim's bidding. It is easier that way. There are fewer angry phone calls and meetings; less fuss come time for the annual review of a prosecutor's performance. Many, if not most, prosecutors play pimp to a victim's rage.

Doesn't the Polanski case disprove this rule? After all, the victim has been heard. Her plea has been considered. But the state is still acting. It's sovereignty has been injured. It needs its pound of flesh from a 76-year-old man.

This is where George Will's remark comes into focus. The state cares about sovereignty, it's power to act within the sphere of its influence. Attacking the state's sovereignty is like, well, taking a child's virginity. It is an insult not easily forgiven. The state must prove that its orders cannot be ignored. Polanski must be crushed.

But where Will is wrong is that the people aren't jealous to guard the sovereignty of the state. That jealousy belongs to the government. It will use anything to protect its power. The state will even turn on the people it serves.

Hence the paradox of the Polanski case. It pursued Polanski initially because of the harm it did to the victim. Presumably she and her family had input into the prosecution. The state then stood behind the angry family and told us all it was acting on their behalf. But when the victim lost interest, the state did not. Now the state stands alone telling the victim it know best. The state must act to vindicate its sovereignty.

I enjoy Polanski's films, but deplore his conduct with Gibbons. In a prudish way, I think less of Jack Nicholson, an actor an admire, merely because the rape took place in Nicholson's home. The ease with which I assign guilt by association startles me. But troubling as I find Polanski's behavior to be that conduct palls in comparison to the acts of the state of California, who use the victim just as much as did Polanski. He raped a girl in a private act of lust; California rapes her anew in a symbolic display of power.

Only fools, and George Will, love the state's desire to assert its sovereignty. The state is a fiction that can easily become all too real a menace when it forgets its function. Who is sovereign? We the people. We have constitutions to keep the state from getting to big for its britches and our comfort.

Is Adultery A Sex Offense

Read Jonathan Turley.

Saturday, April 24, 2010

Is Tiger Woods A Sex Offender?

May's Vanity Fair is vintage soft porn. Accompanying Mark Seal's piece on Tiger Woods is a series of photographs of some of the golf legend's latest flames. Loredana Jolie Ferriolo bares her ass on a bed at the Walforf Astoria, the collagen in her lips trying, somehow, to say "come hither." Mindy Lawson's tongue nibbles a cherry and sits, looking about as appealing as a prison matron, in a red blouse all but open to a morals charge. And let's not forget the droopy chested Michelle Braun, who struts the hallway of the Breakers in Palm Beach, Florida.

But my favorite photo is that of Jamie Juners, snapped at the Cooper Hotel in New York City. I thought it was an advertisement at first, for an expensive fur shop. The sepia tones look like a shot for the New Yorker.

Sex sells, all right, and Tiger was buying. Spending $60,000 a weekend for the right girl didn't phase him, and why should it. He weighs his money. But the women who consented to be interviewed and photographed relay that Tiger is also cheap. No gifts for these babes. One recalls the only time Tiger ever bought her dinner. He was stopping at Subway. She asked him to pick up a wrap for her. He did, and then it was down to the wham-bam, thank-you- ma'am hustle of a man who cannot keep his pecker dry, even, apparently, for an evening.

It is a depressing read, even if it is, as is usually the case with a piece in Vanity Fair, wonderfully written.

In colonial times, back when adultery was a capital offense, Tiger might be swinging from a rope, together with Ms. Ferriolo. But times have changed. The 26-year-old has a world-class following of rich horn dogs who pay as much as $100,000 for an assignation. She is commonly ferried from one continent to another in private jets.

Tiger's skill with a golf club does not cross over to pick up lines. "You have a perfect body," he told Ms. Lawton on their first rutting. They were in the kitchen of his home. Tiger apparently liked trying out different locations in Windmere, Florida home. But the master bedroom was off limits. Respect for the sanctity of the marital sheets?

Ms. Lawton was as artless as Tiger. She took his penis in her hand in the glittering kitchen. "Wow," she tells Vanity Fair. "It was the biggest I've ever seen." Just how large was her survey?

A psychiatrist might struggle to figure out Tiger. He was married to a woman of legendary beauty, Elin Nordegren, who as a Swedish student was too busy to be bothered with glamor. You see, she has brains, too. She studied child psychology at Lund University in Scandinavia.

Tiger had wealth, a beautiful and intelligent wife, fame and power. So he tossed it all away chasing expensive call girls and women who marvel over comparative penis size. I don't quite get it.

Is he a sex offender? No. His tastes did not run to children or young women below the age of sixteen, the line the law now draws in lusts sandbox. But he is out of control: A libidinal train wreck. Tiger, you see, is the perfect example of a man who takes Madison Avenue literally.

There is a reason that Ms. Juner's come hither shot for Vanity Fair likes like the sort of advertisement that might appear in a tony Upper West Side magazine. She's the prize you are supposed to get if you succeed. Put your nose to the grindstone by day, and who knows where that nose won't go when the Sun, and, well ... goes down.

Tiger Woods is a tragic figure. But the tragedy is really an example of a culture gone haywire. Sex sells. We use it to motivate and inflame every consumer with hormones. Tiger had the money to make whores moan. No crime there, but it is morally tawdry.

I can't tell whether to pity or envy Tiger. Sure, he's lost everything of enduring value. His wife has left him, and taken their children. He is the laughing stock of the world, known as a hypocrite. But, when the lights go down, he takes the red dog walking in ways that, frankly, makes me smirk. He's what a middle aged man would be like if he lived in fraternity houses while running Goldman Sachs. The idea of living in a world without consequences appeals in a midnight, adolescent sort of way.

Tiger Woods is a sex offender. His lust is out of control. The law won't punish him, at least I've not yet heard of a warrant for soliciting prostitution. But the law's lines are arbitrarily drawn. The Puritans would have spanked him but good.

I'd like to see a poll about what college-age males really think of Tiger. I suspect in many quarters, he's more admired than ever. After all, he can buy as much sex as we can sell, and then sell stories about it magazines replete with glossy pictures. He got caught doing what the rest of us are supposed to dream about.

Tiger a sex offender? You bet. And so are the rest of us.

Thursday, April 22, 2010

Sunshine In Georgia

The one-size-fits-all approach to the law-enforcement treatment and classification of sex offenders is on the chopping block. Both the George House and Senate have approved legislation that would give folks required to register on the state's sex offender registry to the right to petition the courts for removal from the list.

Of course, no all offenders will be eligible for removal. Only those folks convicted of less serious offenses are eligible to petition for removal.

The bill was passed by the George House of Representatives in March; it cleared the Georgia Senate by a vote of 45-0 yesterday.

Stay tuned. It may soon by champagne-cork poppin' time.

Tuesday, April 20, 2010

A Call For Help

A woman called yesterday. She was a stay-at-home mother with two small children. Her husband had a good job. Then he touched a woman on the leg in an airplane. Federal prosecutors and the Federal Bureau of Investigation moved in. The man is a sex offender, they concluded. So he goes to prison next week.

How will she keep her home? What will become of her children and her? Are there any support services for her out there?

I explained as gently as I could that the law is an ass. Hysteria governs law enforcement and the courts. We no longer try to distinguish the predator from the merely disturbed. And we never, ever think about the consequences for an accused's family. A man goes off to prison, and his children are in effect without a father. A home is foreclosed upon. We as a society turn a blind eye to this suffering. It is mere collateral damage.

But this damage can last a lifetime. I know because my wife's father did federal time years ago and briefly for his refusal to swear an oath of loyalty to the United States. Decades later, my wife recalls his absence with sorrow and fear of what the government can do.

I promised the woman who called that I would have some email contacts for her. There are support groups out there. People are beginning to organized to challenge laws too harsh for the common good. She promised me she would send me an email about how to reach her. She never did.

So if you are out there reading and worrying tonight, send me an email or call me again. I have not forgotten you, and I have found people who may be able to help.

What To Do When The Police Come Calling

I'm a battle-hardened criminal defense lawyer, so it always surprises me how weak in the knees I get when a policeman pulls me over. The urge to confess runs rampant, even if I haven't done anything. I assume the authorities must have a reason for wanting to talk to me. What have I done?

Police prey upon our tendency to trust them. Yet confusing the sort of soul-cleansing confession one might give to a priest with the Earth-bound variety police officers ask for is playing with Hell fire. Many a man and woman sits now in a prison cell, convicted by their own words.

I pass along some general observations about cooperating with the police in the hope that it may spare you the sorrow that comes of an improvident confession to a lawman. Mind you, nothing I am writing here is meant to encourage folks to commit a crime. I am simply reminding you that however much confession may benefit the soul in some spiritual sense, the corporeal consequences of a confession could well land you in prison. And prison is not good for the soul.

So here are some common myths and misconceptions about what you must do when the police come calling.

1. The police can order me down to the station to give a statement, correct?

Wrong. The police cannot order you to come down and see them. The Fourth Amendment gives them the power to arrest if they develop probable cause to believe you have committed a crime, and they might have the authority to engage you in a brief investigatory detention. But no case stands for the proposition that you are required to come to the station for a chat. Period.

But fear undermines many folk's sense of self-interest. So does a misplaced sense of hope.

An officer may call and say he needs you to come to the station to tell your side of the story. (He may not tell you just what story that is. My favorite investigative technique? Officers show up at your door and ask: "Why do you think we want to talk to you?") The officer may say that if you don't come to the station he will seek an arrest warrant for you.

News flash: The officer is almost certainly going to seek the warrant anyhow once things have gotten to that point. What he is looking for here is a confession, to bolster the warrant and make a conviction all but a foregone conclusion.

The law does not require police officers to get your side of the story before arresting you. In rare cases only does discussing your case with the police benefit you. The only way to make an intelligent assessment of whether you should cooperate is by consulting a lawyer before you talk to the police. There are no exceptions to this rule. Don't accept the invitation for coffee and donuts at the station.

2. When the police show up at my house, I have to talk to them right?

Wrong again. The normal conventions of polite society do not apply here. The police have not come to your home to trade notes on how your respective fantasy sports teams are doing. They are investigating a crime, and you may well be a suspect. It takes perishingly little to convict of certain crimes. Minor details you give them may be used as a means of corroborating a far-fetched story told about you by others.

This is common in child sex-abuse cases. Suppose your niece or nephew now claims you abused them a decade ago. You are rattled. Shocked. The police want to ask you about the relationship. Where you saw the child. What sorts of things you did together. Why you think the child is saying these things. All of these investigative leads can be turned against you to corroborate the fact that you did, indeed, have contact with the child at certain family events. Your assessment of the child's motives will be transformed into claims that you were deceptive.

Evidence that might truly assist you, e.g., the fact that the child has made similar false or exaggerated claims, background on family conflicts that provide the child with powerful motives to lie to assure that mommy and daddy remain together, united in crisis, and other such information can be provided to the police by your lawyer.

3. If the police don't read me my rights, they can't use anything I say, right?

Wrong, unless you are in custody. The so-called Miranda warnings have become part of American folklore. Unfortunately, many people get it wrong, thanks in no small measure to television. Police are only required to advise you of your right to remain silent if you are in custody. If you appear at the station voluntarily and they tell you that you are free to leave, you almost certainly are not in custody. In these cases, courts will regard your statement as voluntary, and, Mirandized or not, you will eat your own words at trial.

If you are unsure whether you are in custody or not, and believe me, figuring that out is no easy task, simply refuse to speak to the police. Once again, don't resort to normal, polite conversational gambits. "Maybe I should talk to a lawyer" is not clear enough to satisfy a court that you were serious about wanting a lawyer present. State the following: "I DO NOT WANT TO SPEAK TO YOU WITHOUT A LAWYER PRESENT." Print it out on a three-by-five card. If you really want to short the officer's circuits, ask him to sign the card, signifying that he gets it. (He won't sign.)

This may sound cynical, but it is a conclusion I've reached after many years of head-banging: the courts are increasingly reluctant to meaningfully enforce the rights of the accused. Ask any criminal lawyer about the serious crime exception to the Bill of Rights. Don't become a victim. Call a lawyer.

Police officers are trained in the art of deception. They know how to prey on fear and uncertainty. Whether you have committed a crime or not, odds are you will be putty in their hands. There are ways to get the information important to your defense into the hands of the police, but you are not equipped to do it without a lawyer.

I have said this to folks hundreds of times. Sadly, each week I get another call from someone who has given away some significant portion of their future by talking about things they would have been better served keeping to themselves.

Sunday, April 18, 2010

Four Things You Need To Know If You Are Charged With A Sex Offense

If you or a loved one are charged with a sex offense you are undoubtedly concerned about the prospect of imprisonment. But that is only one of the four discrete harms faced by any accused sex offender. There are three other harms that are as significant, and each should be discussed with your lawyer.

Sex offenses come in many forms, ranging from urinating in public, in some jurisdictions, to forcible rape. Unfortunately, all these various offenses are frequently lumped together. Programs designed for violent offenders are often indiscriminately required for anyone convicted of a sex offense.

Here are the four harms: imprisonment, a felony record, registration as a sex offender, and being required to undergo sex offender treatment as a condition of probation. Often, defendants are so terrified of imprisonment, they do not spend enough time focusing on the other harms that will befall them if they enter a plea or are convicted a trial.

Imprisonment. Nothing prevents a prosecutor from overcharging a case. We call this colloquially "throwing the book" at someone. Thus, for one event, a defendant can be charged with a series of crimes. Often the more serious charges carry mandatory minimum prison sentences. A person facing five years mandatory jail time might willingly, and gratefully, plead guilty to charges not including the mandatory minimum. Many a defendant has walked out of court with a suspended sentence when the state dropped a charge carrying a mandatory minimum only to face nightmarish terms and conditions of probation. Be sure you understand the factual basis supporting each charge. Ask your lawyer whether the state has overcharged in a way that violates your right to be free from double jeopardy. (The answer is almost always no, but you still need to check.)

Felony. A felony conviction is a potent bar to participation in many professions. It will also keep you from voting and from enjoying certain federal and state benefits. Most state penal codes are drafted in such a way that related offenses are graded on a scale of culpability, with first degree offenses being considered more serious than offenses in the second, third or fourth degree. There are sometimes misdemeanor offenses lurking at the low end of the culpability scale. Always press in pre-trial negotiations for the state to consider a plea to a misdemeanor in those cases in which you are willing to consider a plea. At trial, be sure to ask your lawyer to review with you any lesser included offenses that you might ask the judge to submit to a jury. Remember: the state almost always overcharges a case. Putting a lesser charge before the jury might well spare you a felony if you are convicted.

Sex Offender Registration. The law is particularly savage. Lawmakers are forever pressed into hysteria when a new sensational sex abuse case hits the newspaper. They adopt a one-size-fits-all strategy for classifying those convicted of an ever-widening array of crimes. A serial rapist is the same as a 17 year-old boy who made love to his minor girlfriend. Judges acknowledge the cruelty of these laws in private conversations, but few will do anything about it when it counts. Everyone is afraid of retribution at the polls or at their next retention hearing. Laws differ in both the state and federal courts about what offenses require registration and for how long. Many states also have law-enforcement only sites that are not disclosed to the public via the Internet. If you need to register, press your lawyer to get you on a non-public list for a limited period.

Sex Offender Treatment. This condition of probation catches many defendants by surprise. It is sometimes slipped in at the very last minute after a plea bargain when a judge requires compliance with "such conditions as probation deems necessary." A person facing such treatment can expect demeaning treatment by scarcely trained and often poorly education folks with the equivalent of undergraduate degrees. A probationer might be required to fill out a detailed questionnaire about their sexual history and fantasies. You might be required to admit things you never did or face prison. And then there are group treatment sessions in which Romeo sits cheek by jowl with Jack the Ripper. And don't try complaining to the court that all these conditions are unfair or are not what you bargained for. The courts are rarely receptive to such claims.

Sex offender cases are terrifying. Clients face enormous prison terms. The rules of evidence are stacked in favor of the complaining witnesses, with special rules of young alleged victims and limits on what can and cannot be said about the past of the person accusing you of a crime. And lawmakers show increasing willingness to extend statutes of limitations to the breaking point. Don't recall where you were 30 years ago? Who can? But an alleged victim can claim you touched her or him in ways the law prohibits.

The four harms facing all sex offenders need to be addressed promptly in any defense strategy. It may be that intelligent negotiations with the state can minimize these harms if you are willing to consider a plea to some offense. Of course, in cases in which a plea is out of the question, it still pays to keep your eye on these four harms. If you are unfortunate enough to be convicted, you'll want to avoid as many of them as possible.

Working With Children Is A Sex Offense

Afraid to work with children because you might be accused of a crime? You're not alone. Read this excellent post by Mike Cernovich at Crime and Federalism.

Thursday, April 15, 2010

Can Padilla Be Used In Sex Offense Cases?

It was reassuring to see the United States Supreme Court chip away at the collateral consequences doctrine in Padilla v. Kentucky. By ruling that criminal defense counsel have an affirmative obligation to advise their clients about the immigration consequences of a plea, the Court moved one step closer to reality. Let’s hope it is not the last step.

Padilla entered a guilty plea in a Kentucy court. His lawyer told him not to worry about the immigration consequences of the plea. Padilla had, after all, been in the United States for 40 years. So Padilla pleaded guilty. And deportation proceedings promptly began. He was on a one way ticket out of the land of the free.

When Padilla claimed that his lawyer was ineffective within the meaning of the Sixth Amendment, the Kentucky courts turned a deaf ear. Counsel had properly advised the client about the criminal consequences of his plea; immigration was merely collateral to the criminal plea. The Supreme Court said otherwise.

Our courts sidestep justice all the time by regarding the foreseeable consequences of a criminal conviction as merely incidental. Thus, in the case of a sex offender, courts permit convictions to stand when lawyers fail to make adequate warnings about all sorts of things, including the demeaning and often standardless manner in which so-called sex offender treatment is administered.

Does Padilla offer hope that the Courts will take a broader view of the punishing collateral consequences of a guilty plea to a sex offense?

It seems suddenly as if sex is the new crack. Hardly a day goes by in my office in which a young man does not call accused of either fondling a child, looking at child pornography, playing Romeo to some willing Juliet, or otherwise engaging in some other act of sexual misconduct. A decade ago, the phone rang almost as often with folks accused of participating in the sale of crack cocaine.

Are we enduring a new moral panic?

I’m not sure just why the American public always seems to need some unifying demon to hate. At various points, we turned our rage on alcohol, people of color, Communists, and, now sex. Somehow a stark contrast between good and evil seems to satisfy in a way that beholding shades of gray does not. Are good Americans required to be Manicheans?

Anyone accused of a sex offense really faces four harms. In my view, good lawyering requires advising a client about them all, and then doing what can be done to minimize the harm to the client arising from each of these harms.

The first two harms are obvious: the disabling effect of a felony conviction and imprisonment. These are the classic consequences of a conviction that all lawyers know and understand, although, I suspect, there may be some confusion regarding mandatory minimum sentences as these sentences change with legislative tastes.

The requirement to register on a sex offender registry and the need to participate in sex offender treatment as a condition of any probation are a direct and proximate consequence of a plea in most states. In other words, utter the word "guilty" and these consequences flow as irrevocably as, well, immigration problems.

If there is now a Sixth Amendment requirement to advise defendants of the immigration consequences of a plea, it follows that rights to due process and equal protection, and against cruel and unusual punishment, ought to be enforced in some meaningful way as to the consequences of a plea. It simply isn’t good enough to permit Courts to pass off miscarriages of justice arising from sex offender pleas as merely incidental consequences of a guilty plea.

Padilla v. Kentucky is important not just for the protection it offers to immigrants accused of crimes. It is important also as a new tool that just might help to mitigate the gratuitous harm done to those convicted of sex offenses. In the current climate of moral panic, we are failing to distinguish minor offenders from serial rapists. The result is a criminal justice system dealing out draconian consequences without meaningful review. Padilla offers the hope of change.

Reprinted courtest of the Connecticut Law Tribune.

Tuesday, April 13, 2010

Snark Hunting In The Virtual Agora

The New York Times reports today a trend among online news organizations. It seems the days of the anonymous commenter are rapidly coming to an end. It is a welcome development.

The Internet is a great tool for fostering discussion about all manner of things. I think of it as a virtual agora, a marketplace where citizens of all stripes can rub elbows, and egos, to discuss the issues of the day. But it is also more. Often the Internet is used as a playpen for the disturbed and for cowards.

My favorite story of Internet subterfuge involves Judge Shirley Strickland Saffold in Cleveland. She was posting hostile comments anonymously beneath news stories about a lawyer appearing before in The Plain Dealer of Cleveland. It what can only be referred to as the world's premiere case of brass ovaries, Judge Strickland is suing the newspaper for violating her privacy. The newspaper, you see, found out that the judge was playing Sneaky Shirley.

I have a couple of professional snarks who send me and others comments. What's more, I have a pretty good idea of who these folks are based on their comments. But here's the rub: You can't defend yourself against a phantom. Some people are simply content to piss and moan beneath a cloak of anonymity: It is the ultimate form of cowardice.

I stopped running anonymous comments a while back. I now require commenters to register. Lo and behold, registration yielded a cease in hostile traffic. Presumably, some folks still hate me, but their hatred is a gift they hide. In some cases I suspect that is because they simply don't want the full truth to be erred. It is easy to point a finger; harder to look into a mirror

So be it, I say. The Washington Post, The New York Times, and many other papers are moving toward a registration requirement.

“Anonymity is just the way things are done. It’s an accepted part of the Internet, but there’s no question that people hide behind anonymity to make vile or controversial comments,” said Arianna Huffington, a founder of The Huffington Post. “I feel that this is almost like an education process. As the rules of the road are changing and the Internet is growing up, the trend is away from anonymity.”

No one is chilled in the exercise of their First Amendment rights by requiring to own what they say. The trend toward requiring accountability is welcome, and does not in the least diminish the quality of debate online.

Monday, April 12, 2010

Illinois Reform Group Heads To Springfield

The only way lawmakers will be forced to face the consequences of bad laws if is the people affected by those laws educated those in power. And that is precisely what will be taking place in Springfield, Illionois, on April 22, when a group of ordinary people seeking to reform sex offender laws will pay a visit to lawmakers.

Attached in a group produced to educate others about what's wrong with the current sex offender regime. I pass it along as an example of effective education and advocacy.

Press Release

A group of citizens from across Illinois will meet at the State Capital in
late April to voice their concerns with Illinois’ sex offender laws.

Current laws, as structured, are not keeping our children safe. They are,
in fact, costing the taxpayers millions of dollars to prosecute, monitor,
incarcerate, and severely punish many individuals who are of no danger
to children, society, or the communities in which they live. They believe
that laws which will truly benefit the safety of our children, and society
in general, must differentiate between those who are dangerous offenders
and those who are not.

“Our goal in Springfield is to advocate for research-based policies that
protect society, and especially children, as well as rehabilitate
perpetrators,” says Tonia Maloney, President of Illinois Voices.

“Emotionally charged reactions to sex crimes often lead to legislation that
is not driven by data or research, but rather by fear and outrage. Our
current sex offender laws are not addressing the true problem – how to
prevent new victims and how to monitor only those who are truly a threat
to society.”

Currently, residency restrictions and community-notification laws contain a myriad of non-violent offenders,including: teen consensual sex (with a few years difference in age), exposing genitals in public (even without realizing someone else is watching), teens posting nude or semi-nude photos of themselves on MySpace and other
social networking sites or texting them to others; parents taking innocent pictures of their children in the bathtub; and many more.

“Under the Adam Walsh Act, children as young as 14-years old will be placed on the Illinois Sex Offender Registry where all of their classmates will be able to see their photos right next to rapists, child molesters, and murderers.

We feel this is unfair to expose these kids to such harsh treatment,” points out Maloney. “Ohio is the only state that has implemented the Adam Walsh Act and the Ohio Supreme has ruled part of it unconstitutional. It will cost Illinois taxpayers over $21 million for the state to comply with the demands of the Federal Government. We would support this Act if there was evidence that it would reduce criminal sexual abuse and child murder. However, recent studies have indicated that over 95% of all sex crimes are committed by someone who is not a registered sex offender.” The Adam Walsh Act would also require most sex offenders to wear a GPS-monitoring device.
However, there are no studies available that show that GPS technology has reduced recidivism with regards to sex offenders.

Many legislators have privately admitted that these laws have gone far enough. Recently, state legislators passed a bill that would no longer allow prosecutors to criminalize teens for Sexting. Maloney further states, “We are hoping to encourage our policymakers to advocate for the most efficient and cost-effective implementation of laws based on risk-assessment procedures and differential trategies in accord with the level of threat that an offender poses to a community. There are sexually violent people in this world and those are the ones that law enforcement should be dedicating their time to, not the thousands of non-violent and even consensual offenders.”

For more information, contact:

Tonia Maloney
P.O. Box 4016
Fairview Heights, IL 62208
Or visit:

Friday, April 9, 2010

Hartford Courant Weighs In On Sex Offenders

The following editorial appeared in a recent edition of The Hartford Courant, the nation's oldest continuously published newspaper. It is a sign that good sense is infectious.

Hat Tip: JK

When the Adam Walsh Child Protection and Safety Act, a federal law aimed at sex offenders, was being debated in 2005, Florida Attorney General Charlie Christ said, "The experts tell us that someone who has molested a child will do it again and again." Others made the same point.

The law was passed and signed by President George W. Bush in 2006. The law attempts to expand the scope of sex offender registries at the state level as well as create a national sex offender registry. States were told to sign on or risk losing a small amount of grant money.

Last week, a bill that would have brought Connecticut in line with the Walsh Act was — wisely — allowed to die in committee.

The Walsh Act has been widely criticized on many fronts, for everything from including adolescents as young as 14 on the list to violating several provisions of the Constitution. Only one state, Ohio, has adopted it.

Laws such as the Walsh Act, often named for victims of crimes the law is trying to prevent, are of course well-intentioned. But they tend not to be based on research, and so do not achieve an optimal level of public safety. Indeed, they can unintentionally make things worse.

For example, if Connecticut officials followed the research, they would not expand the state's sex offender registry, but reduce it.

All states have sex offender registries to which residents have online access. Some states put offenders on their registries based on their risk to the community. Connecticut is one of the states that place people on the registry because they are convicted of a sex offense.

Many people assume everyone on the registry is either a rapist or pedophile. If that were so, the list would be much smaller. But it also includes an array of porn possessors, voyeurs and people who as older teenagers had consensual sex with an underage girlfriend or boyfriend. As a result, the state now has more than 5,000 people on the sex-offender registry, an increasingly unwieldy group for hard-pressed police departments to monitor.

Some on the list are dangerous and must be watched, but many are not. As the list is now presented, it's difficult to tell one from the other. They are listed by the crime they were convicted of committing, but it's not clear whether a conviction for "risk of injury" or "second-degree sexual assault" means the person is a danger to others. (The registry also misses people who pleaded to a lesser offense to stay off it.)

Why does the state list so many offenders? In part, as the Florida attorney general's testimony suggests, from the widespread belief that sex offenders are likely to re-offend, along with the notions that all sex offenders are alike and that they are not amenable to treatment.

The research contradicts all of these premises.

The Myth Of Incorrigibility
Sex offenders represent a cross-section, ranging from psychotics to a lot of seemingly normal people who have made a serious mistake. "They've all done something bad, but they don't all present the same level of risk," said David D'Amora, who directs the state's post-prison sex offender treatment programs for The Connection, a Middletown-based nonprofit.

Treatment works: It can reduce recidivism by as much as 40 percent, according to recent studies. "We have the lowest recidivism with the people we get through treatment, no question," said William Carbone, director of the Judicial Branch's Court Support Services Division.

Perhaps the most surprising research finding is that sex offenders as a group have among the lowest rates of recidivism of any category of criminal.

A major U.S. Bureau of Justice Statistics study of nearly 10,000 sex offenders released in 1994 found that only 5.3 percent had been arrested for a new sex crime in the ensuing three years. Other studies put the sex offender recidivism rate between 14 and 20 percent.

The major implication to be drawn from this data is that the great majority of sex crimes are committed by new criminals, people who have never been arrested for such an offense before. That strongly suggests that more resources should be shifted upstream, to education and prevention programs in date and dorm rape, domestic violence and similar behaviors. Just focusing on convicted sex offenders ignores the prevalence of sexual violence in the broader culture, which in part is producing sex offenders.

Shrink The Sex-Offender Registry

One way to capture resources would be to shrink the sex-offender registry so that it only lists former violent offenders who may still pose an appreciable risk to the public.

If the list is there to protect the public, it's not clear why nonviolent offenders should have to register at all. But if they do, they should not be on a list available to the public.

For low-risk offenders who have served their sentences, the additional burden of public humiliation can be devastatingly cruel. They need a home and a job, but when their presence on the sex offender registry becomes known, they not infrequently lose the house and job.

Sometimes they and their families suffer threats, harassment or physical harm, according to several studies. Some experts say the shame, isolation and depression that accompanies the public pillorying can trigger relapse.

Vermont limits public notification to individuals who pose a high risk to the community, as does Minnesota. New Jersey divides offenders into three tiers of risk, and the names on the low-risk tier are shared only with law enforcement agencies. That is the direction Connecticut should head.

In dealing with sex offenders, Connecticut officials are clearly doing some things right. There is treatment available in prison as well as close supervision, treatment and individualized case management, with appropriate restrictions, for those on parole and probation. This works. Of about 1,800 former sex offenders who have come off parole in the past six years, only a handful — fewer then 10 — have been rearrested for a sex crime, a state Department of Correction spokesman said.

Residency Restrictions

But the good work is often challenged by fear or flawed thinking.

Another bill proposed this year, and wisely allowed to die in committee, would have prohibited a registered sex offender from living within 2,000 feet of a school or day care center. Although residency restrictions may make sense in individual cases — and are sometimes imposed as conditions of probation — blanket residency restrictions do not.

They are fueled in part by the notion of "stranger danger," another myth that most child molesters are strangers, sinister perverts in trench coats lurking around the school playground. The research belies that stereotype and says the vast majority of child sexual abuse victims identify their abusers as family members or acquaintances. A Justice Department study in 2000 of police reports from 12 states found that only 7 percent of sexual assaults on children were perpetrated by strangers.

The data is similar for adult women victims: More than 70 percent of rapes and 85 percent of sexual assaults are carried out by people known to the victim.

This year, thanks to thoughtful leadership on the Judiciary Committee, the legislature resisted some laws that would have been easy "get-tough" targets, but not good policy. Next year, they have the chance to make things better.
Site Meter